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1 Memorandum Florida Department of Environmental Protection To: Highlands Ranch Mitigation Bank permit application File No From: Connie Bersok Re: May 9, 2012 status memo On May 8, Tim Rach sent to me a draft pilot permit, intent to issue, and UMAM summary form that Mark Thomasson drafted and intends to send to the applicant/agent/attorney for this project. The main difference is an increase in total potential mitigation credits to 424, with the vast majority of that increase given to the upland communities. I had expressed in a meeting earlier this week with Mark that any additional lift for the sandhill and mesic flatwoods would be way out of the range of credits given for comparable mitigation banks (even 333 credits was above the range) and could not be ecologically supported. I hereby state my objection to the intended agency action and refusal to recommend this permit for issuance. This permit application did not follow the normal processing in accordance with Chapter 120, F.S. I was not allowed to provide the applicant/agent with a Request for Additional Information, but had to accept additional waivers from the 30 day review timeclock. As result, there was no additional submittal or clarification of the information in the file and the file was never deemed complete. The 90 day clock began on February 18, upon expiration of the last waiver. On February 10, Dept. Secretary Jeff Littlejohn proposed making a change in the way that this mitigation bank proposal is reviewed, assessed, and permitted. Rather than requesting detailed mitigation plans for the agency to review, he wanted the permit to be performance-driven. I explained to him that mitigation bank permits do have incremental releases based on ecological performance, but that the rule and statutes require reasonable assurance that the mitigation plans can achieve the ecological goal. (On February 20 th, in a meeting with Dept. Secretary Jeff Littlejohn about a different mitigation bank, I gave him a list of the relevant rules and statutes (attached)). In keeping with the new performance-driven approach, Dept. Secretary Jeff Littlejohn further directed me to not apply a time lag or risk factor (greater than 1) to my assessment of this mitigation bank, which was consistent with his notes on my previous

2 hypothetical and conceptual assessments (received by me on February 8). There are many problems with not considering time lag and risk, but this direction could technically be resolved in the application review and permit. I followed Dept. Secretary Jeff Littlejohn s direction and created a draft permit for discussion. Meetings then ensued internally with Division Director Mark Thomasson and also with the applicant/agent/attorney for the proposed mitigation bank from late March through April. I consistently noted that if we were going to take the performance-driven approach as directed by Dept. Secretary Jeff Littlejohn, the conditions of the permit would have to take the place of the reasonable assurance that the file didn t provide. I also explained that all of the proposed amount of credits (on a % lift basis) were greater than and inconsistent with comparable permitted mitigation banks. As a result, this permit would be expected to result in a net loss of wetland function, contrary to environmental resource permitting rules (12.1, SJRWMD Applicants Handbook). I further expressed my concern that other pending and permitted mitigation banks would want the same treatment and applications of this approach, which would only further increase the net loss of wetland function. Today is day 82/90.

3 The rules on mitigation banking and UMAM, in addition to the Florida Statutes, require reasonable assurance associated with a mitigation plan to achieve the mitigation bank goal of intact ecosystems per (1), F.S Establishment and operation of mitigation banks.-- (1) MITIGATION BANK PERMITS.--. To obtain a mitigation bank permit, the applicant must provide reasonable assurance that:.. (d) The proposed mitigation bank will not destroy areas with high ecological value; (e) The proposed mitigation bank will achieve mitigation success; (g) Any surface water management system to be constructed, altered, operated, maintained, abandoned, or removed within the mitigation bank will meet the requirements of this part and the rules adopted thereunder;.. (4) MITIGATION CREDITS.--After evaluating the information submitted by the applicant for a mitigation bank permit and assessing the proposed mitigation bank pursuant to the criteria in this section, the department or water management district shall award a number of mitigation credits to a proposed mitigation bank or phase of such mitigation bank. In determining the degree of improvement in ecological value, each of the following factors, at a minimum, shall be evaluated: (a) The extent to which target hydrologic regimes can be achieved and maintained. (b) The extent to which management activities promote natural ecological conditions, such as natural fire patterns. (d) The quality and quantity of wetland or upland restoration, enhancement, preservation, or creation. (f) The extent to which the mitigation bank provides habitat for fish and wildlife, especially habitat for species listed as threatened, endangered, or of special concern, or provides habitats that are unique for that mitigation service area. (5) SCHEDULE FOR CREDIT RELEASE (b) The number of credits and schedule for release shall be determined by the department or water management district based upon the performance criteria for the mitigation bank and the success criteria for each mitigation activity. The release schedule for a specific mitigation bank or phase thereof shall be related to the actions required to implement the bank, such as site protection, site preparation, earthwork, removal of wastes, planting, removal or control of nuisance and exotic species, installation of structures, and annual monitoring and management requirements for success Criteria for Establishing a Mitigation Bank. (1) The banker shall provide reasonable assurance that the proposed Mitigation Bank will:

4 (a) Improve ecological conditions of the regional watershed; (b) Provide viable and sustainable ecological and hydrological functions for the proposed mitigation service area; (c) Be effectively managed in perpetuity; (d) Not destroy areas with high ecological value; (e) Achieve mitigation success (2) The banker shall also provide reasonable assurance that any surface water management system to be constructed, altered, operated, maintained, abandoned, or removed within the Mitigation Bank area will meet conditions of issuance of Part IV of Chapter 373, F.S., and the rules adopted thereunder Mitigation Bank Permit Applications. Any person or entity proposing to establish a Mitigation Bank must apply for a Mitigation Bank Permit. An application for a Mitigation Bank Permit shall also constitute an application for any required permit authorized under Part IV of Chapter 373, F.S. To provide the Department with reasonable assurances that the proposed Mitigation Bank will meet the criteria in Section , F.S., and in this chapter, and that any proposed system will meet the applicable criteria of Part IV of Chapter 373, F.S., each Mitigation Bank Permit application submitted to the Department shall include the information required under Part IV of Chapter 373, F.S., as applicable, and the information specified below as appropriate for the proposed bank (4) A mitigation plan describing the actions proposed to establish, construct, operate, manage and maintain the Mitigation Bank which shall include: (a) Construction-level drawings detailing proposed topographic alterations and all structural components associated with proposed activities; (b) Proposed construction activities, including a detailed schedule for implementation; (c) The proposed vegetation planting scheme and detailed schedule for implementation; (d) Measures to be implemented during and after construction to avoid adverse impacts related to proposed activities; (e) A detailed perpetual management plan comprising all aspects of operation and maintenance, including water management practices, vegetation establishment, exotic and nuisance species control, fire management, and control of access; and (f) A proposed monitoring plan to demonstrate mitigation success Financial Responsibility. (10) Cost estimates. (b) The cost estimate for construction and implementation shall include all costs associated with completing construction and implementation of the Mitigation Bank, or phase

5 thereof, including, as applicable, earthmoving, planting, exotic/nuisance vegetation removal, land surveying, structure installation, consultant fees, taxes, monitoring activities and reports. (d) The banker shall submit written cost estimates, together with verifiable basis for the estimates to the Department along with the financial responsibility mechanism. (e) The costs shall be estimated based on a third party performing the work at the fair market value of services. The source of any cost estimates shall be indicated Assessment Method Overview and Guidance. (1) When an applicant submits a mitigation bank or regional mitigation permit application, the applicant will be responsible for submitting the necessary supporting information for the application of Rules , F.A.C., of this chapter and the reviewing agency will be responsible for verifying this information and applying this assessment method to determine the potential amount of mitigation to be provided by the bank or regional mitigation area. In addition, the Environmental Resource Permit rules (SJRWMD Applicant s Handbook) include the following reasonable assurance requirements as condition for issuance of permits, including mitigation bank permits In order to obtain an individual, standard, or conceptual environmental resource permit, an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal, or abandonment of a surface water management system: (a) Will not cause adverse water quantity impacts to receiving waters and adjacent lands; (b) Will not cause adverse flooding to on-site or off-site property; (c) Will not cause adverse impacts to existing surface water storage and conveyance capabilities; (d) Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; (e) Will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 62-3, 62-4, , , and , F.A.C., including any antidegradation provisions of sections (1)(a) and (b), (2) and (3), and , F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in sections (2) and (3), F.A.C., will be violated; (f) Will not cause adverse secondary impacts to the water resources; (g) Will not adversely impact the maintenance of surface or ground water levels or surface water flows established in Chapter 40C-8, F.A.C.; (h) Will not cause adverse impacts to a work of the District established pursuant to section , F.S.; (i) Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed;

6 (j) Will be conducted by an entity with the financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and (k) Will comply with any applicable special basin or geographic area criteria established in chapter 40C-41, F.A.C Compliance with the following criteria shall constitute reasonable assurance that a proposed system meets the requirements of paragraphs (d), (e), (f), (j), and (k) and (a) through (d): (a) State water quality standards must not be violated, as set forth in subsections 10.7 through and through (b) The applicant must establish financial responsibility and provide for an operation and maintenance entity, as set forth in subsections 10.8 through (c) The environmental criteria set forth in subsections 12.2 through , including mitigation and mitigation banking provisions, must be met. (d) Applicable basin criteria set forth in section 11 and chapter 40C-41, F.A.C., must be met Water quantity impacts to wetlands and other surface waters Pursuant to paragraph (a), an applicant must provide reasonable assurance that the regulated activity will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions as follows: (a) Whenever portions of a system, such as constructed basins, structures, stormwater ponds, canals, and ditches, could have the effect of reducing the depth, duration or frequency of inundation or saturation in a wetland or other surface water, the applicant must perform an analysis of the drawdown in water levels or diversion of water flows resulting from such activities and provide reasonable assurance that these drawdowns or diversions will not adversely impact the functions that wetlands and other surface waters provide to fish and wildlife and listed species. (b) Increasing the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters or by impounding water in wetlands or other surface waters must also be addressed to prevent adverse effects to functions that wetlands and other surface waters provide to fish and wildlife and listed species. Different types of wetlands respond differently to increased depth, duration, or frequency of inundation. Therefore, the applicant must provide reasonable assurance that activities that have the potential to increase discharge or water levels will not adversely affect the functioning of the specific wetland or other surface water subject to the increased discharge or water level. (c) Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to monitor the wetland or other surface waters to demonstrate that such alteration has not resulted in adverse impacts; or calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions.

7 Reasonable assurances regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal and abandonment of the system. The following requirements are in addition to the water quality requirements found in subsection of the Handbook Short term water quality considerations The applicant must address the short term water quality impacts of a proposed system, including (a) providing turbidity barriers or similar devices for the duration of dewatering and other construction activities in or adjacent to wetlands or other surface waters. (b) stabilizing newly created slopes or surfaces in or adjacent to wetlands and other surface waters to prevent erosion and turbidity (d) maintaining construction equipment to ensure that oils, greases, gasoline, or other pollutants are not released into wetlands or other surface waters (e) controlling the discharge from spoil disposal sites. (f) preventing any other discharge or release of pollutants during construction or alteration that will cause water quality standards to be violated Long term water quality considerations The applicant must address the long term water quality impacts of a proposed system, including: (a) the potential of a constructed or altered water body to violate water quality standards due to its depth or configuration. (b) long term erosion, siltation or propeller dredging that will cause turbidity violations. (c) prevention of any discharge or release of pollutants from the system that will cause water quality standards to be violated Applicants shall provide reasonable assurance that proposed mitigation will: (a) offset adverse impacts due to regulated activities; and (b) achieve mitigation success by providing viable and sustainable ecological and hydrological functions Applicants shall submit detailed plans describing proposed construction, establishment, and management of mitigation areas. These plans shall include the following information, as appropriate for the type of mitigation proposed: (a) A soils map of the mitigation area and other soils information pertinent to the specific mitigation actions proposed. (b) A topographic map of the mitigation area and adjacent hydrologic contributing and receiving areas. (c) A hydrologic features map of the mitigation area and adjacent hydrologic contributing and receiving areas.

8 (d) A description of current hydrologic conditions affecting the mitigation area. (e) A map of vegetation communities in and around the mitigation area. (f) Construction drawings detailing proposed topographic alterations and all structural components associated with proposed activities. (g) Proposed construction activities, including a detailed schedule for implementation. (h) A vegetation planting scheme if planting is proposed, and schedule for implementation. (i) Sources of plants and soils used in wetland creation. (j) Measures to be implemented during and after construction to avoid adverse impacts related to proposed activities. (k) A management plan comprising all aspects of operation and maintenance, including water management practices, vegetation establishment, exotic and nuisance species control, fire management, and control of access. (l) A proposed monitoring plan to demonstrate mitigation success. (m) A description of the activities proposed to control exotic and nuisance species should these become established in the mitigation area. The mitigation proposal must include reasonable measures to assure that these species do not invade the mitigation area in such numbers as to affect the likelihood of success of the project. (n) a description of anticipated site conditions in and around the mitigation area after the mitigation plan is successfully implemented. (o) a comparison of current fish and wildlife habitat to expected habitat after the mitigation plan is successfully implemented

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